Petition for Probate of Will and for Letters Testamentary (South Dakota)

PETITION FOR PROBATE OF WILL AND FOR LETTERS TESTAMENTARY

IN THE CIRCUIT COURT, [_____] JUDICIAL CIRCUIT, COUNTY OF [COUNTY], STATE OF SOUTH DAKOTA

TABLE OF CONTENTS

1. Caption and Case Information
2. Petitioner Information
3. Decedent Information
4. Jurisdiction and Venue
5. The Will Offered for Probate
6. Devisees and Heirs at Law (for Notice)
7. Nomination and Priority of Personal Representative
8. Bond
9. Prayer for Relief
10. Verification
11. Certificate of Service / Notice
12. Attachments Checklist

1. CAPTION AND CASE INFORMATION

Case No.: [____________________________________]

This proceeding is brought as: ☐ Formal Testacy Proceeding (Petition, § 29A-3-401) ☐ Informal Probate (Application, § 29A-3-301)

2. PETITIONER INFORMATION

Name: [PETITIONER FULL LEGAL NAME]
Address: [STREET ADDRESS], [CITY], South Dakota [ZIP CODE]
County of Residence: [COUNTY]
Telephone: [________________________________]
Email: [________________________________]
Capacity: Person named as Executor (Personal Representative) in the Decedent's Last Will and Testament.
Interest of Petitioner (§ 29A-3-301(a)(1)): [________________________________]

3. DECEDENT INFORMATION

4. JURISDICTION AND VENUE

a. The Decedent died testate on [__/__/____], leaving a Last Will and Testament dated [__/__/____].

b. The Decedent was domiciled in [COUNTY] County, South Dakota at the time of death; venue is proper in this Circuit Court under SDCL § 29A-3-201.

c. ☐ The Decedent was not domiciled in South Dakota but property of the Decedent was located in [COUNTY] County at the time of death (§ 29A-3-201).

d. Under SDCL § 29A-3-102, the Will must be declared valid by an order of probate to be effective to transfer property or to nominate a personal representative.

e. ☐ Petitioner is unaware of any personal representative previously appointed in this State or elsewhere whose appointment has not been terminated (§ 29A-3-301(a)(1)).

f. This proceeding is commenced within the time limits of SDCL § 29A-3-108.

5. THE WILL OFFERED FOR PROBATE

a. The instrument offered is the Decedent's Last Will and Testament dated [__/__/____] ☐ together with the following Codicil(s): [__________________________].

b. The original of the Last Will of the Decedent ☐ is in the possession of the Court ☐ accompanies this Petition (§ 29A-3-402(b)(3)).

c. ☐ The original Will is not available; the contents are proved by a copy and the affidavit of at least one credible witness that the copy is a true copy, and the Court is asked to find the Will was not revoked (§ 29A-3-402(d)).

d. To the best of Petitioner's knowledge the Will was validly executed, and after reasonable diligence Petitioner is unaware of any instrument revoking the Will and believes it to be the Decedent's last Will.

e. Self-proving status:
☐ The Will is self-proved by an acknowledgment and affidavits of the testator and witnesses under SDCL § 29A-2-504, and no further proof of execution is required in an uncontested case (§ 29A-3-405).
☐ The Will is not self-proved; due execution will be established by the testimony or affidavit of a subscribing witness (§ 29A-3-405, § 29A-3-406).

f. Subscribing witnesses to the Will:

6. DEVISEES AND HEIRS AT LAW (FOR NOTICE)

The names, addresses, and ages of any minors among the Decedent's spouse, children, heirs, and devisees, so far as known or ascertainable with reasonable diligence (SDCL § 29A-3-301(a)(1)), entitled to notice of hearing under § 29A-3-403:

Devisees / Legatees named in the Will:

Heirs at Law (those who would take in intestacy, for notice):

7. NOMINATION AND PRIORITY OF PERSONAL REPRESENTATIVE

a. The Decedent's Will nominates [PETITIONER FULL LEGAL NAME] as Executor / Personal Representative.

b. As the person named as executor in a Will being probated, Petitioner has highest priority for appointment under SDCL § 29A-3-203(a)(1).

c. Petitioner is qualified to serve under SDCL § 29A-3-601 and is not disqualified (Petitioner is of legal age and competent under § 29A-3-203(f)).

d. ☐ Persons with equal or prior right (if any) have renounced their right or nominated Petitioner.

8. BOND

Under SDCL § 29A-3-603, a bond is not required of a personal representative unless the court concludes that a bond is in the best interests of the estate. Petitioner requests:

☐ That no bond be required because the Will expressly directs that the Personal Representative serve without bond.
☐ That no bond be required as provided by § 29A-3-603, no demand for bond having been made under § 29A-3-605.
☐ That Petitioner be permitted to furnish bond in the amount of $[________________] should the Court conclude a bond is in the best interests of the estate (§ 29A-3-604).

9. PRAYER FOR RELIEF

WHEREFORE, Petitioner respectfully prays that the Court:

a. Admit the Decedent's Last Will and Testament dated [__/__/____] (and any Codicil) to formal probate;

b. Determine the testacy of the Decedent and the heirs, and find that the Will was validly executed and unrevoked;

c. Appoint Petitioner as Personal Representative (Executor) of the Estate;

d. Issue Letters Testamentary to Petitioner upon qualification and acceptance of appointment;

e. Determine that no bond is required, or fix bond as set forth above;

f. Grant such other and further relief as the Court deems just and proper.

10. VERIFICATION

I, [PETITIONER FULL LEGAL NAME], the Petitioner, declare under penalty of perjury under the laws of the State of South Dakota that the foregoing Petition is true, accurate, and complete to the best of my knowledge and belief.

Executed on [__/__/____] at [CITY], South Dakota.

Petitioner Signature: ______________________________________

Printed Name: [PETITIONER FULL LEGAL NAME]

11. CERTIFICATE OF SERVICE / NOTICE

Upon commencement of a formal testacy proceeding, the Court shall fix a time and place of hearing, and notice must be given to interested persons in compliance with SDCL § 29A-3-403 and § 29A-1-401, at least fourteen (14) days before the time set for the hearing, by mail or delivery, and by publication where addresses are unknown.

☐ Notice of hearing mailed or delivered to each interested person at least 14 days before the hearing (§ 29A-3-403, § 29A-1-401)
☐ Notice published once a week for three consecutive weeks in [NEWSPAPER NAME], a legal newspaper in [COUNTY] County, where addresses are unknown (§ 29A-1-401)

Signature: ______________________________________
Printed Name: [PETITIONER / ATTORNEY NAME]
South Dakota Bar No.: [________________] (if applicable)
Address: [________________________________]
Telephone: [________________________________]
Email: [________________________________]

12. ATTACHMENTS CHECKLIST

☐ Verified Petition for Formal Probate of Will and Appointment of Personal Representative
☐ Original Last Will and Testament and all Codicils
☐ Self-proving affidavit (§ 29A-2-504) or Affidavit of Subscribing Witness
☐ Certified copy of Death Certificate
☐ Notice of Hearing and proof of mailing / publication (§ 29A-3-403)
☐ Acceptance of Appointment / Consent to Jurisdiction (§ 29A-3-602)
☐ Bond (§ 29A-3-604), if ordered, or statement that bond is waived/not required
☐ Renunciations or consents of persons with equal or prior priority (if any)
☐ Proposed Order Admitting Will to Probate and Appointing Personal Representative
☐ Filing fee payment

Sources and References
- SDCL Title 29A, Chapter 3 (Probate of Wills and Administration): §§ 29A-3-101 to 29A-3-414; 29A-3-601 to 29A-3-606
- SDCL § 29A-2-504 (Self-proved will)
- South Dakota Codified Laws: https://sdlegislature.gov/Statutes/29A-3